Filling a vacancy on the State Records Committee wasn’t on the Utah State Legislature’s agenda this past week.

While Gov. Gary Herbert sent recommendations to the Senate for 27 positions that needed advice and conset, including former LDS Presiding Bishop H. David Burton appointment to the University of Utah Board of Trustees and former LDS General Young Women’s President Elaine S. Dalton’s nomination to serve on the Utah Valley University Board of Trustees, there was no nominee for the records committee.

The Legislature voted earlier this year to take away the state auditor’s position on the committee and add a second seat for a public member. Four people have applied so far for the position on the body that hears appeals of records denials.

Ally Isom, the governor’s spokeswoman, said Herbert will likely send a name to the Senate for its consideration in September. Isom said Herbert is not trying to drag out the process.

“It’s been a busy, busy month,” Isom said, noting that Herbert has been on a trade mission.

The new appointee would replace Betsy Ross, the auditor’s representative on the committee who was fired in December by incoming state Auditor John Dougall. Ross had opposed HB477, the bill Dougall sponsored as a legislator in 2011 that would have gutted the Government Records Access and Management Act (GRAMA).

Dougall claims he axed Ross because he did not believe she was doing her job as the office’s liaison to the Legislature. He also endorsed removing the auditor’s seat, as it would allow him to audit the committee without worrying about a conflict of interest.

While pledging transparency, the Utah Legislature voted to place parts of its investigation into Attorney General John Swallow behind a cloak of secrecy.

The House of Representatives voted 67-6 Wednesday to approve HB1001, which allows the House investigative committee charged with investigating Swallow to subpoena witnesses, place them under oath and grant limited immunity. The Senate voted 28-0 to approve the measure, with Sen. Curt Bramble, R-Provo, being the only senator not present for the vote.

But the bill also grants the committee the power to close its meetings by a simple majority vote to discuss strategy, obtain legal advice or to interview witnesses. It also allows the committee to declare some of its records as protected, including records of a witness interview, committee members’ impressions of the case or documents that “the disclosure of which would interfere with the effectiveness of the investigation.”

The bill states that the records would remain protected until the committee concludes its business.

“I believe the process should be as transparent as possible,” House Majority Leader Brad Dee, R-Ogden, said. But he said there was a need to maintain confidence between the committee and its legal counsel.

Dee also claimed the Legislature went the “extra mile” by discussing the bill with members of the Utah Media Coalition, of which The Salt Lake Tribune is a member, and they were OK with the restrictions.

Salt Lake City media attorneys Jeff Hunt and Michael O’Brien represented the coalition in discussions with legislators last week.

Hunt said lawmakers were actually looking to put more restrictions on the information, and what came out in the bill was a compromise. Hunt said traditionally in Utah, criminal investigation records are typically regarded a protected records, and the legislative committee records fell into that category.

Also, Hunt noted that had the Legislature made the records private, as was originally proposed, the public would not be able to challenge the closure since private records are not subject to the test balancing the public’s interest in disclosure against the need to keep the record under wraps. Protected records, on the other hand, can be made public if the public interest at least equals the privacy concern.

But such an appeal would go through the Legislature’s own records committee and then the courts. Lawmakers exempted themselves from having to defend record closures before the State Records Committee.

Not everyone was happy with granting the committee exemptions from open-government laws.

Rep. David Lifferth, R-Eagle Mountain, said the committee should not be meeting behind closed doors, but should allow the public to see what is being done.

Jim Fisher, who has taught journalism at the University of Utah, said the investigation should be completely open, with nothing held back.

“It seems to me that there is almost nothing more public than the review of a public employee by the Legislature,” said Fisher, who is also on the board of the state chapter of the Society of Professional Journalists. “It should be public from the get-go.”

Swallow has been accused of helping indicted St. George businessman Jeremy Johnson attempt to bribe U.S. Senate Majority Leader Harry Reid; suggesting to businessmen that contributing to then-Attorney General Mark Shurtleff’s campaign would give them special consideration in the event of an investigation; and violating attorney-client privilege. Swallow is already the target of a federal investigation, as well as probes by the Salt Lake and Davis counties’ attorneys.

A Sandy man wants the State Records Committee to help him find out who accused him of illegal burning.

Larry Hartlerode had filed a request under the Government Records Access and Management Act (GRAMA) for reports from the Unified Fire Authority related to its response to complaints that he was illegally burning in his Sandy yard. Hartlerode’s request was partially granted, with the name of the person who filed the complaint with the department being removed from the record.

“This information should be provided as per the Sixth Amendment of the United States Constitution, specifically the right to confronted with witnesses against him,” Hartlerode wrote in his appeal.

The department said the name could not be released because GRAMA declares people’s addresses and phone numbers as private if the person reasonably expects the information to be kept in confidence. Department officials, in their response, said the person who filed the complaint requested anonymity because of fear of reprisals.

The committee is also hearing another appeal Thursday from Harshad Desai, who asked for copies of personal property audits done in Garfield County between 2001 and 2012, along with the auditors’ names.

The commission said Desai had received some information, such as the number of audits performed, but denied other parts of his request. The commission argued that audit reports are protected information because they involve commercial property.

The commission also argued that its work records are protected, and that it cannot give out auditors’ names in connection to the audits they worked on.

The meeting starts at 9:30 a.m. in the Courtyard Meeting Room at the Utah State Archives. 346 S. Rio Grande St. in Salt Lake City.

“I’ve always maintained if there were a case that qualified for public interest, this was it,” said Joel Campbell, an associate professor of journalism at Brigham Young University.

The party sought the documents to find evidence of Republican skulduggery in the once-a-decade redrawing of congressional and legislative district boundaries. Initially, the Democrats agreed to pay $5,000, but lawmakers increased the fee, and only allowed them to take one of three boxes of documents unless additional money was paid.

Utah’s Government Records Access and Management Act states that government agencies may waive fees if releasing documents would benefit the public rather than an individual. However, the fee waiver is strictly discretionary.

Rep. Brian King, D-Salt Lake City, attempted to remove that discretion from the law with a bill that would have required fee waivers if the public-interest test was met. That bill was sent to interim study after the Utah League of Cities and Towns claimed it would be financially ruinous to cities to offer free records.

Even though district court decisions are not considered decisions of record, Campbell believes it will establish a precedent for demanding fee waivers in cases where a documents are sought for a public benefit.

UDOT spokesman Nile Easton said he informed the West Davis team by email that it could not exclude the media from a meeting with the activists. He said it went against UDOT’s policy on openness.

“Any time we meet with the public in a public meeting, our doors should be open to having media attend and observe,” Easton said.

It’s not the first time a government entity has tried to duck journalists. When the John Kuhni and Sons rendering plant was preparing to move from Provo’s East Bay to Mills, the Juab County Planning Commission broke into small groups to tour the plant so reporters could not come along on the tour.

If the 2011 Utah State Legislature, which railroaded HB477 through, was regarded as the worst for access to public records, 2013 was a significant improvement.

“In the end, it was good for open government,” said Linda Petersen, president of the Utah Foundation for Open Government.

One noticeable difference: Legislators were more willing to consult with the Utah Media Coalition — which includes The Salt Lake Tribune and other Utah media outlets — on open-government bills. In contrast, HB477, which gutted the Government Records Access and Management Act (GRAMA), was written in closed-door meetings and rushed through committee meetings in the waning days of the Legislature.

“I never saw so much effort by the Legislature to include the media,” Petersen said. “They still have the notion that open government is about media access.” Petersen said open government is for all Utahns, and journalists use it as representatives of the public.

But lawmakers could have done better, as they allowed some bills to pass that restricted access to public records such as Utah Transit Authority trip data and jail booking photos.

“I’ll give them an A-minus or a B-plus,” said Joel Campbell, associate professor of print journalism at Brigham Young University. “They rejected some bills that would have closed access to government records and passed bills that gave access.”

On the plus side, legislators passed SB77, Sen. Deidre Henderson’s bill requiring recordings and written minutes of public meetings to be posted on the state’s public meeting notice website. Campbell said the Spanish Fork Republican’s bill puts the meeting records together in one place, rather than having people looking all over the Internet for different websites.

Henderson’s other open-government bill, SB283, is one that, Campbell says, looks good on the surface. It directs the state’s Transparency Advisory Board to look at making more public records available on the state’s Transparency website.

But, Campbell noted the details give cause for concern. The board’s final recommendations have to be approved by the Legislature, a body Campbell said has been too willing to close access to public records.

SB94, Sen. Curt Bramble’s open-government bill creates an online repository lawmakers can place email into, so the public can see it without having to file a GRAMA request. It also takes away the state auditor’s seat on the State Records Committee, making it a public seat.

Campbell said the email repository looks good on paper, until one realizes that participation in it is voluntary. He doesn’t see too many legislators willing to contribute to it if left to their own devices.

And the records-committee provision is a point of concern for Campbell and others. In December, incoming State Auditor John Dougall — who sponsored HB477 when he was in the Legislature — fired Betsy Ross, the auditor’s representative on the committee.

Ross was an opponent to HB477 and regarded as a champion of open government.

The Legislature did shoot down HB307, Rep. Brian Greene’s proposal to strip birthdates off public records such as voter rolls and court records. Greene, a Pleasant Grove Republican, claimed the bill was necessary to protect Utahns from identity theft and elder abuse, even though critics — including the leaders of the state Democratic and Republican parties — pointed out that there is no case where someone used public records to commit identity theft.

But the Legislature also failed to pass Rep. Kraig Powell’s HB207, which would have required public entities to post meeting notices three days before a meeting. Campbell said that would have provided people with more information on what public entities are doing, but it was watered down at the request of the Utah League of Cities and Towns on the grounds that it could open cities to lawsuits if someone questioned whether any last-minute agenda items were truly “unforseen.”

Campbell and Petersen noted a few bills restricting public access did get through.

SB12, sponsored by Vernal Republican Sen. Kevin Van Tassell, makes Utah Transit Authority trip data a protected record. Van Tassell said it would bar people from using GRAMA to find out if their spouse is cheating on them by using UTA to visit a paramour.

Another bill was HB408, Rep. Paul Ray’s bill requiring people who want copies of mug shots to sign a statement swearing that they won’t post the pictures on websites that charge people to remove them. The Clearfield Republican said it was necessary to protect people who had been arrested and either not charged or had the case dismissed from being haunted by the mug shot.

Campbell said those bills highlight the need for a committee with expertise in open-government issues to review bills and make recommendations.

The House Political Subdivisions Committee unanimously approved a watered-down version of Rep. Kraig Powell’s bill requiring meeting agendas be posted 72 hours in advance.

The committee voted Monday to send out HB207 after the Heber Republican altered his original provision that only “unforeseen” items could be added to the posted agenda up to 24 hours before the meeting. Now, any item can be added to the agenda up until the day before the meeting.

Also, the bill states that the state could not take action against a city council, school board or other public entity subject to the Open and Public Meetings Act for failing to comply with the 72-hour notice rule. The bodies’ actions would still be subject to being overturned if they violate the current 24-hour deadline for posting meeting notices.

Instead, Powell said it would be up to the public’s moral indignation to enforce the 72-hour rule.

“But there would be political pressure if [a public agency] did that for a couple meetings,” Powell said. “The people would be asking, ‘What are you hiding?'”